Jewish World Review Nov. 7, 2002 / 2 Kislev, 5763

Eve Tushnet

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Judgment Day: Time for the GOP to Make the Case for Sound Jurisprudence | It's Recrimination Week at the DNC. Everyone wants to know why even Republican pollsters "misunderestimated" the GOP's performance across the nation. Chagrined Democrats are blaming tactical failures (Maryland Governor Parris Glendening called Kathleen Kennedy Townsend's failed gubernatorial campaign "one of the worst-run campaigns in the country") and hurling charges of voter intimidation and vote-suppression.

But left-leaning reporter Joshua Micah Marshall comes closer to the right analysis on his Talking Points blog: "[T]he issue here isn't poor tactics so much as an over-emphasis on tactics in general. The Democrats have lots of long-term political and demographic trends in their favor. But they don't really have a politics, a vision, or a message -- or perhaps, better to say, the courage and imagination to get behind one. And I suspect that that is the underlying issue."

Marshall's mistake is his fond hope that the Democratic Party has a message that they're just not sharing with the rest of the class. In fact, as 49% of survey respondents told the New York Times on Nov. 3, the Dems lack a "clear plan for the country." The party is foxed and muddled not only on issues that caught it off-guard, like national security, but also on its home-turf issues like economic policy and gun control. One issue that both parties use to rile their "base" has gotten less attention, but Democratic confusion could mean major Democratic vulnerability on an issue that could not be more central to American governance.

That issue is: judges. Both parties have followed Supreme Court Justice Antonin Scalia's prediction that judicial confirmations would become more and more politicized as judges arrogated more power and offered fewer textual justifications for their decisions. The Democrats worked hard to scare voters away from "strict constructionist" Republicans: Days before the 2000 elections, Al Gore said, "When my opponent, Governor Bush, says that he will appoint strict constructionists to the Supreme Court, I often think of the strict constructionist meaning that was applied when the Constitution was written, how some people were considered three-fifths of a human being." Later, conservatives fumed as Bush's judges were turned down again and again. Now that the GOP is in the Senate saddle, conservatives are demanding some juicy nominations as payoff for their support.

But all this horse-racing obscures the larger question: What judicial philosophies do the two parties actually stand for?

The Republican position, broadly speaking, can be summarized as, "Follow the rules!" Republicans use textualist rhetoric, praising judges who stick to the plain sense of the law rather than enacting their own policy preferences. Justice Scalia is the most famous textualist; he's also one of the judges then-candidate George W. Bush named as his favorites.

And the Democrats? Their jurisprudential philosophy can be summed up even more quickly than that of the Republicans. It's just one word: abortion.

The constant charge against all of Bush's judicial nominees was that they would seek to restrict abortion. Bush wants to overturn Roe vs. Wade! Bush would deny a woman's right to choose! Jurisprudence, for the Democrats, warped itself around the black hole of abortion rights. This grim focus led to absurdities like Minnesota Senatorial candidate Walter Mondale's statement, "I'm opposed to late-term abortion, but I also know that the Constitution says that you must protect the life and the health of the mother." Hello? Where? As JWR columnist James Lileks put it, "I have the old original version; Mondale is dancing to the remix, so I will grant him that the Constitution does indeed explicitly state this, right between the provisions that grant gun ownership only to redheads and the amendment that permits quartering of troops in private houses if they keep the stereo down after ten."

Republicans have often responded to the save-Roe rhetoric with the lame reply that they don't seek a "litmus test" for judges. But on this one, Senator Tom Daschle is right: We should have a litmus test for judges. Judicial philosophy should matter in confirmation hearings.

And the Republicans should vigorously point out the difference between a textualist litmus test-i.e. a litmus test that's actually about restraining the power of judges, maintaining the checks and balances of the American separation of powers, and, exotically, how a nominee understands the law-and an abortion-rights, outcome-based litmus test. Republicans should challenge Democrats to explain why someone is a bad judge simply because she doesn't believe the Constitution protects the inalienable right to "insert[] a suction tube and vacuum[] out the developing brain and other matter found within the [fetal] skull" (J. Kennedy, dissenting, Stenberg v. Carhart).

Republicans should ask why one issue is more important than a global jurisprudential philosophy. They should ask why the Supreme Court-not a Democratic favorite these days!-should be taking these decisions out of the hands of American voters. They should ask whether outcome-based judging, unanchored in text or tradition, supports or undermines self-government. They should accuse Democrats of paternalism; they'd be right. If a brilliant, evenhanded, and respected judge who believes in the "living Constitution" (a.k.a. the Constitution that means whatever judges want it to mean) is nominated, the "litmus test" can always be waived. But the assumption should be that judicial philosophy matters, and that Republicans stand against what Father Richard John Neuhaus, Editor-in-Chief of First Things, has called "the judicial usurpation of politics."

On this question, it is the Republicans who have "a politics, a vision, or a message" but have so far lacked "the courage and imagination to get behind" it. That can and should change. The voters have already rejected the Democrats' scare tactics; it's time for the Republicans loudly and clearly to offer a positive alternative.

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© 2002, Eve Tushnet